Monday, January 24, 2011

"Overwhelming and unassailable" evidence of Chevron's crimes in Ecuador laid out in plaintiffs' final arguments

Today represents another milestone in the monumental legal case to hold oil giant Chevron (formerly Texaco) accountable for its devastation in Ecuador's Amazon rainforest. After more than 17 years of litigation, lawyers representing tens of thousands of Ecuadorians living amidst Chevron's widespread oil contamination have filed the first part of their final arguments in the case.

Recently submitted to the judge presiding over the trial in the Amazonian town of Lago Agrio, the final written argument – called an "alegato" in Ecuador - outlines in detail the case against Chevron, which lawyer for the plaintiffs Pablo Fajardo calls "overwhelming and unassailable" in the introduction to the 116-page document.

From 1964-1990, Texaco was the sole operator of the oil fields in Ecuador's Amazon. The environmental lawsuit was originally filed against Texaco in 1993, a year after the company left Ecuador. The company abandoned hundreds of toxic waste pits and widespread pollution through the Amazon rainforest region in the country's northeast, turning its operations over to Ecuador's state-owned oil company Petroecuador. In 2001, Chevron absorbed Texaco – taking on liability for the company's misconduct in the Amazon – and the case was re-filed in Ecuador in 2003 after Chevron succeeded in transferring the case out of U.S. courts. Finally, in December 2010, the judge closed the evidentiary phase of the trial, paving the way for the submission of the final arguments.

The plaintiffs' lead lawyer in Ecuador Pablo Fajardo, named a CNN Hero and awarded the Goldman Environmental Prize for his advocacy on behalf of the indigenous and campesino communities taking on Chevron, writes in an opening letter to the judge:

This is a simple case supported by scientific evidence. It is essentially based on thousands of sampling results taken at hundreds of former Texaco drilling sites that unequivocally reveal the presence of dangerous toxins in the soil and in the water. It is also about Texaco’s adoption of woefully substandard processes leading to the deliberate release of those toxins into the environment, where they remain today – practices designed to maximize profit at the expense of the environment and the public health in Ecuador. Chevron has tried to twist this case, diverting the attention of the public and of this Court towards anything and everything other than these core issues, resulting in a record exceeding 180,000 pages largely comprised of nothing more than “noise” intended to distract you, Sr. Presidente, from what really matters. Throughout the present legal report, we will cut through the noise, and focus on those issues that lie at the very heart of this case: Texaco’s deliberate misconduct, the environmental contamination resulting from that misconduct, and the legal basis for Chevron’s liability for the damages.

In a press release from the Amazon Defense Coalition, Karen Hinton, spokesperson for the plaintiffs, says:

"The voluminous scientific evidence in the case is summarized clearly in this historic document. This evidence proves overwhelmingly that Chevron is responsible for what is widely regarded as the world's worst oil-related disaster. We encourage all interested persons to read the alegato and judge for themselves whether Chevron is telling the truth about its deliberate misconduct in Ecuador."

This filing is the first of a three part submission of final arguments. As the press release explains, "the second and third parts - which deal with damages and issues relating to due process -- will be released in the coming days."

Hinton calls the document "historic" and it is indeed. When the indigenous communities and poor farmers living amidst the Chevron's toxic legacy first organized to file suit against then-Texaco in New York federal court (Texaco was based in White Plains, NY), many people said that they would never be able to hold the company accountable. When Texaco managed to get the suit removed from U.S. courts under forum non conveniens, Texaco's lawyers and many allies of the Ecuadorians thought it was over. When Chevron absorbed Texaco, the Amazonian communities had a mammoth new adversary that countless people said couldn't be brought to justice. And since Chevron brought on Gibson Dunn and kicked off its no-holds-barred, scorched earth legal and PR strategy, many more have jumped on the pessimists' bandwagon.

But here we are with the final arguments, and the judge deliberating on a decision that is widely expected to be delivered this year. The plaintiffs have brought on DC mega law firm Patton Boggs and high-profile lawyer James Tyrrell, who vows that the plaintiffs will be able to enforce a judgment against Chevron and win major damages to be put to environmental cleanup and healthcare in their communities.

Now, because of the critical, historic nature of these legal filings, I will quote the narrative introduction at length (though I encourage you to click through to the actual final argument filing if you want to see the case laid out in irrefutable, exacting detail)

Lawyer Pablo Fajardo continues in an introduction to the evidence:

The evidence against Chevron is overwhelming and unassailable. Any visitor to the region can see the evidence in striking terms: old Texaco barrels mired in hundreds of giant, unlined, open-air pits of oily sludge that leach their contents via overflow pipes built by the oil company into nearby streams and rivers. Evidence demonstrates that the company never conducted a single environmental impact study or health evaluation in the decades it operated in the Amazon, even though thousands of people lived in and around its oil production facilities and relied on rivers and streams that the company used to discharge toxic waste. Hundreds of waste pits left by Texpet [blog editor: Texpet is Texas Petroleum Company, the name under which Texaco, Inc. operated in Ecuador] have been tested extensively by experts hired by Chevron and the plaintiffs, and by various third party scientists, revealing levels of total petroleum hydrocarbons and heavy metals hundreds and sometimes thousands of times higher than allowable norms in Ecuador and the U.S. Chevron’s own documents prove that, as the Amazon communities have long alleged, Texaco never re-injected or safely disposed of “produced water,” and instead dumped it into surrounding streams and rivers which local residents still use for drinking, cooking, and bathing. The company also engaged in outright fraud: a 1972 memo from Texaco’s head of Latin American production issued a blunt directive to the company’s acting manager in Ecuador to destroy previous reports of oil spills and to forego documenting future spills in writing unless they were already known to the press or regulatory authorities, and, incredibly, not to produce any new reports that met these criteria.
Fajardo continues:
When it became clear that the evidence against Chevron was building, a Chevron spokesman announced to the Wall Street Journal: “We’re not paying and we’re going to fight this for years if not decades into the future.” The company put out a press release promising the plaintiffs a “lifetime of litigation” if they persisted. Chevron’s General Counsel said he expected to lose the case, but vowed that Chevron would “fight until hell freezes over and then fight it out on the ice.” These statements clearly contradicted Chevron’s earlier promises to abide by a judgment in Ecuador’s courts – promises it made to the American courts in order to secure a forum non conveniens (lack of jurisdiction) dismissal of a previously filed class action there. Throughout the course of the trial, it became clear that Chevron intended to play by a new set of rules. Chevron seeks not only to quash this case, but also to destroy very idea that indigenous communities can empower themselves to vindicate their legal rights. In a startling moment of candor, a Chevron lobbyist interviewed about the lawsuit admitted to Newsweek magazine: “We can’t let little countries screw around with big companies like this – companies that have made big investments around the world.”

Concluding the introduction before enumerating the evidence, he finally writes:

In the ultimate insult to indigenous peoples, Chevron has even gone so far as to suggest to courts in the United States and even to this Court that the Plaintiffs are not real – the mere figment of unscrupulous lawyers’ collective imaginations. But despite Chevron’s efforts to wish them away – the plaintiffs are real. They are as real as Chevron’s decimation of the rainforest on which these people rely for every facet of their existence – from their drinking water to their very culture and way of life. They are as real as the specter of disease that looms over the affected communities every day, while a litany of illnesses in their majority unknown to this region – continue to proliferate through the population at an alarming rate. The Plaintiffs are indeed very real, and much to Chevron’s chagrin, intimidation has not made them disappear. Chevron miscalculated – the company’s belief that it could simply outlast the indigenous people of the Oriente and drain them of their will to persevere has failed.

Incredibly, Chevron claims that it is being denied due process in this case, while it is the affected communities who have been forced to wait seventeen years for justice, thanks to the dangerous combination that is Chevron’s limitless appetite for litigation and its utter disregard for candor and for the rule of law. Indeed, in the face of Chevron’s relentless efforts to assure that this day never came, it is nothing short of a miracle that the case now stands on the precipice of judgment. The time for Chevron’s excuses, its finger-pointing, its international side-shows, and its extra-judicial mischief is over – this case will now be judged on the merits, as it should be. And as will be made plain herein, there is a very good reason Chevron has moved heaven and earth to avoid a decision on the merits, even at the expense of the company’s international reputation. When we strip away the artifice and focus instead on what matters – what exactly is in the ground and water and who put it there – Chevron simply cannot prevail.

What follows after the narrative introduction is a detailed outline numbering more than a hundred pages that provides all of the evidence proving the disastrous impacts of what Chevron/Texaco did in Ecuador, the rigorous testing showing how the company's activities poisoned the environment, and subsequently, local residents.

The alegato cites two painstaking internal audits commissioned by Texaco as it was preparing to depart Ecuador, explaining exactly how these studies prove the plaintiffs' case on their own. But to add to the mountain of evidence, the document lays out how Chevron's own testing results of contaminated oil well sites, abandoned waste pits, and surrounding water and soil prove the plaintiffs case for them.

It goes on to outline Chevron's legal culpability, and deconstruct all of the various defenses that the oil giant asserts, which run from legally ridiculous to morally reprehensible.

But enough of my thoughts. Whether concerned about human rights or the rainforest or the environment in general, I know many people have followed this case partly for its historic potential to set a powerful precedent to hold corporations accountable for their crimes against some of the most vulnerable people and sensitive ecosystems on our planet. If you are one of those people, if you care about this case, about justice, about the future of the planet, read this historic document. The case against Chevron. The case for justice in Ecuador. The case for a future in which another such tragedy is unthinkable.

Visit to view the historic filing, see the press release, and more.

– Han

Han Shan is the Coordinator of the Clean Up Ecuador Campaign

Friday, January 7, 2011

Chevron's Dirty Tricks Guy in Ecuador On The Run from Questioning Over Efforts to Corrupt Pollution Trial

It appears that Chevron's self-described 'dirty tricks guy' in Ecuador, Diego Borja, who was recorded talking about his efforts to corrupt the trial over Chevron's contamination in Ecuador, is on the run to avoid questioning recently ordered by U.S. courts.

Borja and his wife, who was also implicated in the recordings, have apparently disappeared from the home near Chevron's headquarters in California, where they had been relocated by the company (and where Chevron paid their $6000/month rent) in the wake of their announcement about a contrived scandal that Borja had cooked up in Ecuador in an attempt to smear the judge overseeing the trial.

I've written a number of times here and at Huffington Post about Chevron's Diego Borja, and overwhelming evidence that he, along with his wife and an American con-man sidekick, helped Chevron corrupt the trial over the company's oil contamination in the Ecuadorian Amazon. Most recently, two U.S. Federal Courts ruled that Borja, his wife Sara Portilla, and the American, Wayne Hansen, would have to testify about their role in attempting to entrap and bribe the judge then overseeing the trial against Chevron in Ecuador, as well as evidence-tampering and other activities to corrupt the legal process. And now, after fleeing Ecuador and hiding out around the corner from Chevron's headquarters, they're on the run again.

Why are they on the run?

What are they afraid of telling the courts? Did Chevron help them to escape ahead of subpoena servers and scheduled depositions? As I've said previously, it's hard not to wonder what they could tell us about Chevron's involvement in years of efforts to disrupt and derail the trial.

What do they know about General Counsel Hewitt Pate and his involvement with schemes aimed at corrupting the Ecuadorian judiciary? How about former top lawyer Charles James, a lawyer for George W. Bush's Justice Department who was Chevron's GC at the time Borja was concocting the sting operation against the judge then overseeing the trial in Ecuador? What will Borja tell us about the Jones Day lawyers like Tim Cullen at whose San Francisco offices Borja had a meeting in the midst of his Nixon-style dirty tricks operation?

Or maybe Borja, Portilla, and Hansen are just worried about their own skin. In recorded conversations with a former friend-turned-whistleblower, Borja said that if Chevron didn't help him out, he could "immediately go to the other side... I have correspondence that talks about things you cannot even imagine, dude... I can't talk about them here, dude, because I'm afraid, but they're things that can make the [plaintiffs] win this just like that."

In the recordings, Borja also explained how he participated in "cooking" evidence in the trial and told him "crime does pay!" Borja explained how his activities would help the oil giant evade responsibility for massive environmental damage and contamination that continues to cause serious and widespread health problems for thousands of indigenous people and campesino settlers throughout the Ecuadorian Amazon.

In September, Judge Edward M. Chen of the U.S. District Court for the Northern District of California said that Chevron had "implicated" Borja as a witness to its claims against the courts in Ecuador, and ordered Borja to sit for a deposition by attorneys for the Republic of Ecuador, which is fighting Chevron's attempts to force the country into a binding arbitration. A number of legal analysts have agreed with the plaintiffs' charges that Chevron is trying to use arbitration to make an "end-run" around the litigation against the company and hopes to make the Republic –– and its citizens –– pick up the tab for the toxic mess the oil giant left behind. Borja's attorneys filed a motion to "quash" the subpoena and avoid providing testimony, but that was denied and Borja was ordered to testify.

According to a press release from the Amazon Defense Coalition, "Borja's sudden disappearance from California was discovered when lawyers for the indigenous plaintiffs attempted to serve subpoenas on him and Portilla commanding them to testify about their roles in falsifying evidence."

According to the release, Wayne Hansen, a shady American former drug trafficker and convicted felon who partnered with Borja in his dirty tricks operation against the judge then presiding over the monumental trial, has also disappeared. Hansen was most recently living in Bakersfield, California and is presumably fleeing the jurisdiction to avoid having to testify about his activities. In a meeting with the judge that Hansen and Borja videotaped using spy-pens purchased from a Skymall catalog, Hansen posed as a businessmen interested in contracts for environmental remediation should the plaintiffs prevail in the legal battle. He asked the judge more than a dozen times who he would be ruling for, with the judge telling him each time that he would only declare that in a final ruling.

Neighbors of Borja and Portilla told representatives of the Ecuadorian plaintiffs that they thought perhaps the couple had fled to Texas. And who knows where Wayne Hansen has disappeared to. But keep your eyes out for these people and help locate them so the truth about their activities – and Chevron's involvement in their efforts – to deny justice to suffering people in Ecuador can finally be known.

If you have any information about the whereabouts of Diego Borja, Sara Portilla, or Wayne Hansen, please contact our Chevron-Ecuador confidential whistleblower's hotline: 1-877-844-4114 or email

Background on Diego Borja, Sara Portilla, and Wayne Hansen:

San Francisco Daily Journal, September 14, 2010:
With Discovery Bid, Ecuador Turns Tables On Chevron

Amazon Defense Coalition press release, September 14, 2010:
Lawsuit Targets Chevron "Dirty Tricks" Operative Over Ecuador Video Corruption Scandal

The whistleblower report on Diego Borja, including recordings of him spilling the beans to his childhood friend about his involvement in Chevron's systematic attempts to corrupt the trial:
Chevron's Dirty Tricks Operative in Ecuador, Diego Borja: Whistleblower Report

And for further background, read two Huffington Post articles I wrote:

First, I blew the lid off the whole supposed "corruption scandal" only days after Chevron announced it last fall:
Chevron's 'Dirty Tricks Operation' in the Amazon

Then I revealed the shockingly shady past of Diego Borja's convicted felon, drug-trafficker, partner-in-crime Wayne Hansen:
Chevron's Man in Ecuador: Felon, Drug-Trafficker, and Liar, Oh My!

– Han

Han Shan is Coordinator of Amazon Watch's Clean Up Ecuador Campaign

Thursday, January 6, 2011

Photo Essay from the Frontlines: Cultural & Environmental Destruction in the Ecuadorian Amazon

Yesterday, the excellent Matador Change blog published a new photo essay about Chevron's legacy in Ecuador by Amazon Watch's corporate campaigns director Mitch Anderson. Matador Change is the advocacy/altruism/social change part of the Matador Network, an online magazine devoted to travel and adventure. Check out the introduction to the photo essay and a few select photos, and then check out the rest over at Matador (link at bottom):

Descending from the Andes into the oil boomtown of Coca, the Ecuadorian Amazon, one of the most biologically diverse rainforests on the planet, stretches out as far as the eye can see.

Nearly half a century ago, this part of the rainforest was the pristine home of five indigenous groups – the Quichua, Cofan, Huaorani, Siona, and Secoya. In the early 1960s, American oil company Texaco discovered heavy crude oil beneath this jungle region, called the Oriente, or the East.

Over the next three decades of oil drilling Texaco (now Chevron) spilled an estimated 17 million gallons of oil, and dumped over 18 billion gallons of toxic wastewater into the rivers and streams relied upon by local residents for drinking and bathing.

The invasion of the region by oil workers wreaked havoc on the cultures of the indigenous communities while Texaco’s environmental devastation condemned the tribes to an ongoing public health crisis. The extensive oil infrastructure (opening roads to build oil wells and pipelines) propelled a massive colonization of the region by poor farmers from around Ecuador, who in turn would suffer from the same problems faced by the indigenous residents.

This is the first in a series of photo essays documenting the cultural and environmental destruction in this region of Ecuador by Chevron. The people who came to the region hoping for a brighter future in the wake of the discovery of oil encountered unsafe working conditions and exposure to toxic chemicals, and continue to live in the midst of a polluted environment that has caused an epidemic of oil-related illness throughout their communities. Photos by Mitch Anderson.

Two workers eating in a cafeteria in the town of Taracoa. Man on left: “I am one of the people affected by Texaco. During the times of Texaco, all the water of the forest was full of salt and toxins.” Man on right: “There is no other option but to work for the oil companies here.”

Antonio Jaime Yanan Gomez, 42, stands at the grave site of his daughter. Antonio arrived in the Oriente in 1982, and lives 500 meters from Yuca Central oil processing station, built by Texaco. Antonio’s daughter died when she was only a year-and-a-half old toddler. “She died from the contamination,” he says. Antonio works in oil tank construction for oil industry company ProinPetrol.

Nelson Alvarado, 46, arrived in the Oriente in 1981 and began working for Texaco. Beneath his home, he digs up crude oil, as his son, daughter, and a nephew look on. A Texaco pipeline ruptured, he says, covering his land in oil.

Children from the community of Taracoa swimming in a river that remains contaminated. In fact, say locals, their entire water supply is contaminated.

Check out the rest of the photos at the Matador Change blog.